Responsibility For Crime Is Still The Criminal's, Right?

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WASHINGTON — O.J. Simpson has begun to pay the price of double murder: He must surrender his silverware. And this is not the most dismaying recent outcome from the criminal justice system.

On Aug. 18, 1989, the Menendez brothers, Erik and Lyle, drove from Los Angeles to San Diego to buy shotguns and birdshot, using false identifications. That night they slept in their wealthy parents' Los Angeles home, and the next morning exchanged the birdshot shells for more deadly buckshot. Later that day they went boating with their parents. The next day they fired 15 shells - they had to reload - into their parents while the parents were watching television.

The brothers collected $700,000 in life insurance and went on a shopping spree.

When they admitted the killings, they argued that they killed because they were frightened victims of sexual and emotional abuse. About half the jurors were convinced by the excuse (convinced that the brothers had an honest but unreasonable fear for their lives) and refused to convict of murder.

This has moved James Q. Wilson, the social scientist especially knowledgeable concerning crime, to publish a timely, disturbing and valuable book, Moral Judgment: Does the Abuse Excuse Threaten Our Legal System?

His answer to that question is: Increasingly it threatens not only the legal system but society's moral equilibrium and tranquillity. It undermines the concept of personal responsibility. And the legal system's increasing susceptibility to ''abuse excuses'' weakens the law's character-building capacity because it diminishes the law's power to strengthen the individual's often attenuated self-control.

It is a juror's duty to judge human behavior. It is a human tendency to want to explain behavior. Jurors are human. Hence a tension between judging and explaining. Into this tension intrudes, increasingly, the ''expert witness.'' He is arguably a scientist and certainly an expert at making murky - on behalf of clients wealthy enough to hire him - the fundamental assumption of our legal system, that people are responsible for their actions.

What Wilson calls the ''struggle between science and law'' is often first a struggle between competing scientific claims, often with less real science involved than when experts clashed about DNA evidence during the Simpson trial. And what causes a judge to admit testimony such as that of the expert who testified that research on snails explained that the Menendez brothers' brains had been ''rewired'' by their experiences, as snails' brains can be?

One reason is the fear that, given our obsession with procedural perfection, cases that are not plea-bargained are ripe for appeal. Hence judges struggle to minimize grounds for appeals. Hence the circus of jury selection, which takes minutes in England and in the Simpson trial began with prospective jurors filling out 73-page questionnaires. Hence permissiveness toward ''expert witnesses.''

Another reason for excessive deference to ''experts'' is the therapeutic ethic - policy must cure, not judge - that arises from a disposition to assume that crime is socially or biologically caused. Plausible science (the proposition that all behavior is in some sense caused) can produce perverse law (the notion that, if behavior is caused, the individual is not responsible for it).

For example, when, as in the past, the law assumed that culpability was intensified when a crime was committed by someone intoxicated or caught up in mob hysteria, the law taught a duty to avoid loss of control. Now both intoxication and mob hysteria (remember Damian Williams and others beating the truck driver Reginald Denny nearly to death with bricks during the Los Angeles riots) are likely to be thought to mitigate guilt.

Indeed, many factors other than abuse of various sorts are said by ''experts'' to correlate with crime, hence to cause crime, hence to lessen responsibility for crime. These factors include - among many other things - low verbal intelligence-quotient scores, low levels of serotonin, elevated levels of testosterone, lead and manganese, the XYY chromosome pattern in men, fetal-alcohol and fetal-drug syndromes, extreme poverty, living in a single-parent family, use of anabolic steroids.

Wilson believes that the law should hold (as the second Menendez trial held) that individuals are responsible for their actions ''unless those actions are caused by a pure reflex or a delusional state utterly beyond rational control.'' Otherwise, we increasingly will have what Wilson calls ''a decline in the willingness of citizens to assume and ascribe personal responsibility for their actions.''

This begets a tendency ''to deny guilt, to expect rewards without efforts, to blame society for individual failings, and to exploit legal technicalities to avoid moral culpability.''

Thus does doubt about the capacity of individuals to govern themselves erode society's capacity for self-government.